WE NOW HAVE THE NON-ACUTE PAIN TREATMENT GUIDELINES BUT WHAT DOES THAT MEAN?
You may be asking, why would the implementation of the Non-Acute Pain Treatment Guidelines even matter? Why would you want to ensure a pain management treatment provider comes into compliance with the Non-Acute Pain Guidelines? The answer is easy – it matters because of the cost.
Significantly, the Workers Compensation Research Institute (WCRI) reported in its publication Interstate Variations In The Use Of Narcotics, Second Edition, following an investigation of 25 states, that it found that New York and Louisiana had the highest amount of narcotic use within Workers’ Compensation cases. A July 2014 report by the CDC indicates that each day 46 people die from an overdose of prescription painkillers in the United States. Finally, as reported by the CDC in 2007, the costs of opioid abuse totaled “about $55.7 billion with 46% attributable to workplace costs (i.e. lost productivity), 45% to healthcare costs (i.e. abuse treatment), and 9% to criminal justice costs.”  Even the introduction to the Non-Acute Pain Guidelines indicates that the Guidelines were drafted in response to the dramatic increase in use of opioids to treat chronic non-cancer pain. The significant cost of opioid medications is not only borne by carriers, but also by claimants. The medication itself is expensive, the risks of use of these medications are significant; add to that the possibility of overdose, and the personal and financial costs become immeasurable. All of these reasons fashioned the backdrop for the implementation of the Non-Acute Pain Treatment Guidelines.
Initially, case files should be reviewed to determine whether or not a particular claimant is being treated for acute pain (treatment following an injury or surgery) or non-acute pain (pain that lasts longer than what would be considered normal healing).
If the claimant is currently being treated for acute pain, treatment is governed by the body-site-specific Medical Treatment Guideline. By way of example, when the claimant undergoes a lumbar surgical procedure, Medical Treatment Guidelines for the low back provide that narcotics should be primarily reserved for the treatment of severe back pain with the optimum duration of 3 to 7 days and a maximum duration of two weeks, with use beyond this period only in appropriate cases and any use beyond the maximum two weeks should be documented and justified based on the diagnosis and/or invasive procedures. See, New York State Workers’ Compensation Board, Mid And Low Back Injury Medical Treatment Guidelines, Third Edition, September 15, 2014, Section D.7.g. Pursuant to section D.7.g.i, routine use of opioids for acute, subacute, or chronic pain is not recommended. However, the Guidelines do provide for limited use of opioids in acute situations when there is severe pain and, in conjunction, two or more efficacious treatment modalities. See, § D.7.g.ii. Finally, the body-site-specific Medical Treatment Guidelines specifically address when discontinuation is appropriate with one of the factors noted to be use beyond two weeks. See, § D.7.g.ii. The body-site-specific Guidelines also reference brief use following postoperative pain management, but again, note that use beyond 2 to 3 weeks for minor procedures, and 6 weeks for extensive surgical procedures, is the outside limit for use of opioids to treat acute pain. See, § D.7.g.iii.
Based upon the body-site-specific Medical Treatment Guidelines, pain management that lasts longer than 2 weeks in nonsurgical claimants, 2 to 3 weeks in minor surgical claimants, and 6 weeks for invasive surgical candidates would be governed by the Non-Acute Treatment Guidelines. Arguably, there is a gray area for the few week period following the outer limits of allowed treatment based upon the provision in § D.7.g stating, “use beyond two weeks is acceptable in appropriate cases.” Any use beyond maximum should be documented and justified based on the diagnosis and/or invasive procedures.” However, once you reach the specific outer limits of the acute treatment phase, the treating provider that is prescribing the opiates should be contacted by written correspondence and advised that compliance with the Non-Acute Pain Treatment Guidelines is required.
This correspondence to the prescribing provider should be copied to all necessary parties and the Workers’ Compensation Board so there is compliance with WCB Subject No. 046-124 (November 24, 2003), which provides in relevant part, as follows:
“Guidelines for Communications with Health Care Professionals”
In addition to strictly complying with the requirements of WCL § 13-a(6), 137(1)(b) and (c) and Board Rule 300.2(b)(11), parties and their representatives should make every effort to avoid even the appearance that they are attempting to influence the opinion of a health care professional. Contact with health care professionals should be limited to relevant inquiries pertaining to a claimant’s condition and treatment. Questions should be carefully crafted so as not to be ambiguous or suggest the response desired.
Also, to avoid even the appearance that they are not acting in good faith, parties and their representatives are required to send a copy of any written communication with a health care professional to the opposing parties and their legal representative.
WCB Subject No. 046-124.
To ensure compliance with all appropriate statutory provisions, be sure to copy all necessary parties to the action (claimant, claimant’s counsel, Workers’ Compensation Board, etc.) and request information related to the provider’s pain management treatment being rendered. To this end we recommend a few paragraphs addressing:
- Who you are and why you’re writing the letter (demand the claimant’s treatment be brought into compliance with the Non-Acute Pain Medical Treatment Guidelines);
- Brief explanation of the Non-Acute Pain Guidelines, their effective date, and where the doctor can locate the Guidelines on the Board’s website;
- The specific provisions regarding existing prescriptions being brought into compliance with the new Guidelines (§ F.2.b.i), and the requirements for an examination under the new Guidelines (D.1 et seq.); and,
- A specific request that the next scheduled visit be a full assessment pursuant to the Non-Acute Pain Guidelines, and indicate that failure to comply will result in objections to the visit bill, as well as the prescribed medications, as allowed pursuant to Workers’ Compensation.
Now comes the fun part – you’ve sent your letter to the treating provider requesting compliance with the Non-Acute Pain Medical Treatment Guidelines and you’ve received your first billed treatment from that provider since your letter was sent. So, it’s time to review the medical report for compliance with the Non-Acute Pain Guidelines.
Initially, all providers, whether treating a claimant who has been prescribed opioid medications for the last 20 years or treating a newly injured claimant with pain management, are required to bring claimants into compliance with the Non-Acute Pain Guidelines. See, Section F.2.b, New York State Workers’ Compensation Board, New York Non-Acute Pain Medical Treatment Guidelines, First Edition, September 15, 2014. This is important because an objection can be filed to the treatment and the continuing medications based upon the provider’s failure to comply with the Non-Acute Pain Medical Treatment Guidelines. However, it is important to keep in mind that the Guidelines do not provide for complete cessation of opioids, but rather a transition of the claimant’s prior medication regime to one that is in compliance with the standards of the Non-Acute Guidelines. See, § F.2.b.i. As such, although you can raise issue to continued medications by filing the appropriate objection, you cannot just stop payment of these medications in the absence of a judicial order. (Practitioner’s point: At this point, objections can be made to the doctor’s bill for noncompliance with the Non-Acute Pain Medical Treatment Guidelines, as well as any script the claimant seeks to fill following this appointment, if the provider has not indicated whether the treatment is for acute or non-acute pain.)
So, with that, we begin our review of the provider’s medical report to determine whether the provider is in compliance with the Non-Acute Pain Treatment Guidelines. Initially, the provider is required to perform a medical evaluation that consists of three components: 1) history taking and physical examination; 2) personality/psychological and psychosocial; and, 3) diagnostic studies.
When reviewing the medical report for the history taking and physical examination, the doctor should address: 1) pain history, history of present illness; 2) past medical history; and, 3) conduct a physical examination. See, § D.1, et seq. The Guidelines specifically state, “medical records should document the following,” and then layout 16 criteria for pain history and history of present illness – 13 criteria for past medical history and 9 criteria for the physical examination. Based upon the specific language in the Guidelines that, “the medical records should document the following,” the provider should comment on substantially all of the criteria within his or her report. (Practitioner’s point: At this point, objections can be made to the doctor’s bill for noncompliance with the Non-Acute Pain Medical Treatment Guidelines, as well as any script the claimant seeks to fill following this appointment, if the provider fails to document the required criteria.)
When reviewing the medical report for personality/psychological and psychosocial, the Guidelines state, “a psychiatrist or psychologist should perform a clinical evaluation, which includes” a history of the injury (nine separate criteria); health history (five separate criteria); psychosocial history (11 separate criteria); mental status exam; assessment of danger posed to self or others; test results from psychological testing if same are performed; current psychiatric diagnosis; pre-existing psychiatric conditions; and treatment recommendations with “specific goals, frequency, time frames, and expected outcomes.” See, § D.2.a. The Guidelines even go so far as to make recommendations in Appendix B for specific psychometric testing to assist in a patient assessment. (Practitioner’s point: At this point, objections can be made to the doctor’s bill for noncompliance with the Non-Acute Pain Medical Treatment Guidelines, as well as any script the claimant seeks to fill following this appointment, if the provider fails to document the required criteria.)
When reviewing the medical report for diagnostic studies, obviously existing tests should be referenced, or recommendations for further testing stated, pursuant to the body-site-specific Medical Treatment Guidelines. See, § D.3. (Practitioner’s point: At this point, objections can be made to the doctor’s bill for noncompliance with the Non-Acute Pain Medical Treatment Guidelines, as well as any script the claimant seeks to fill following this appointment, if the provider fails to document the required criteria.)
Once the provider has properly done a full evaluation, the provider should state what method of treatment the provider plans to pursue, i.e. nonpharmacological, pharmacological, or surgically-implanted pain control.
Each of the above treatment options is specifically governed by the Non-Acute Pain Treatment Guidelines with specific requirements for goals, frequency, time frames, and expected outcomes. For the sake of brevity, these will not be restated herein, but should be referenced for each specific treatment a provider wishes to pursue per the Non-Acute Pain Treatment Guidelines.
Some significant changes made by the Guidelines are that nutraceuticals (vitamins), topical, oral, and/or systemic compound medications are not recommended. Moreover, the Guidelines make clear that brand-name drugs have no proof of increased efficacy over those of generic. Skeletal muscle relaxants are not recommended unless for acute treatment, and hypnotics and sedatives are generally not recommended. (Practitioner’s point: if the doctor seeks to treat with any of these, a variance will be required. If the provider fails to submit a variance, same can be denied outright as not within the Guidelines.)
A significant change to the Guidelines is that when considering opioid use in an opioid-naïve patient, certain criteria must be met before an opioid trial can be commenced. The patient must fail pain management alternatives before opioids can be considered. Specifically, § F.2.a.iv states:
As such, in the situation of a new-to-opiates claimant, there must be failed pain management alternatives attempted by the provider prior to moving to pharmacological treatment with opioid medications. (Practitioner’s point: Failure of the provider to make such a showing, or if the claimant has not undergone appropriate alternatives, an immediate objection to the billed treatment and an objection to any attempt to fill opioid medication should be filed.)
If the claimant has undergone pain management alternatives which have been unsuccessful and opioid medications are pursued, a trial is to be conducted. See, § F.2. A trial lasts 30 to 60 days, at which time there is to be demonstrated sustained improvement in function and pain with the patient monitored weekly. The goal is a 30% reduction in pain, return to work, an increase in activities of daily living, no significant adverse side effects, and no aberrant drug-related behaviors. See, § F.2.a.ii. Significantly, this section makes clear that if the goals are not met within the 30 to 60-day period, the trial should be discontinued and opioids tapered/discontinued and an alternative approach taken to treating the pain. The Guidelines further make clear that discontinuance should be done as soon as it becomes clear the patient is not responding to the treatment modality and that there is no requirement of a full 60-day trial period. (Practitioner’s point: If the reports do not demonstrate improvement using the criteria noted above, an objection to treatment should be filed and the carrier should push for discontinuance/tapering if no improvement is demonstrated.)
When a provider considers an opioid trial, they must determine the opioid risk for that particular patient by utilizing Table 2 at page 41 of the Guidelines. The risk assessment consists of five questions, which yield a score depending on the answers. That score creates a claimant’s risk assessment for opioid use. Importantly, if the doctor is considering an opioid trial or even continued use of opioids in a patient that is being brought into compliance with the Non-Acute Guidelines, the assessment should be referenced in the provider’s medical report. (Practitioner’s point: Failure to provide the opioid risk assessment in the medical report would be a proper basis to file an objection to the treatment and deny any opioid medication claimant attempts to fill per that evaluation/provider.)
The Guidelines also require that the patient complete a “Patient Informed Consent for Opioid Treatment Form” contained at Appendix F, which is signed by both the patient and the doctor. Additionally, the Guidelines require the “Patient Understanding for Opioid Treatment Form” contained at Appendix G, which is again signed by the patient and the physician. These forms are both required documents per the Non-Acute Pain Treatment Guidelines. As these are Board-required forms, these forms should be filed with the Workers’ Compensation Board at the time the provider seeks to begin the opioid trial or continue opioid medications for a claimant being brought into compliance with the Guidelines. (Practitioner’s point: A provider’s failure to submit one or both of these forms would be a proper basis to file an objection to the treatment and deny any opioid medication claimant attempts to fill per that evaluation/provider.)
There should also be indication in the report that I-STOP (NYS Internet System for Tracking Over-Prescribing-Prescription Monitoring Program). This is as simple is indicating that I-STOP/PMP was consulted. A provider, as of August 27, 2013, when writing prescriptions for schedule II, III, and IV controlled substances, is required by New York State to consult and report medications in these classes which are being prescribed.
If a trial is effective, the provider can then begin the transition from trial to long-term treatment with opioid medications. At the time of the transition from trial to long-term use, a full reassessment/reevaluation is to be completed. The failure of the provider to do a reassessment/reevaluation would be a valid basis to file an objection to the treatment and raise objection to continuing and transitioning the patient from trial to long-term opioid use. Section F.2.b.ii provides the criteria necessary for a full reevaluation, which includes but is not limited to: physical and psychological assessment; appropriate referrals based upon complications of the clinical presentation; identifying concurrent non-opioid therapies which are appropriate; a schedule for monitoring and reevaluating the opioid use; compliance with federal and state standards; and, consideration of appropriate referrals for co-morbidities.
The Guidelines specifically limit the use of opioids to a maximum of two, consisting of a long-acting and short-acting opioid medication. See, § F.2.c.ii. When there is consideration of more than two opioids, a second opinion from a specialist who is Board-certified in addiction medication or pain medicine is strongly recommended. (Practitioner’s point: there is no indication as to who is to obtain a second opinion, so arguably the carrier can schedule and demand compliance with this provision).
Per the Guidelines, buccal-delivered medications (drugs which diffuse through tissues lining the mouth and enter directly into the bloodstream) “should not be used in this population.” (Practitioner’s point: a denial should be filed if the practitioner fails to seek this treatment by variance.)
Once a patient has been on chronic opioid therapy, there should be a regular monitoring as well as reevaluation at each patient visit to measure the patient’s adherence and progress with treatment goals. See, § F.3.a. The Guidelines then lay out the criteria and factors a doctor should assess when performing this reevaluation. See, § F.3.b.i. Evidence of significant adverse effects requires the physician to reduce the opioid dose and reassess the patient. See, § F.3.b.ii. The Guidelines also provide, at page 50, Table 3, a detailing of adverse effects from opioids. Obviously, a failure to decrease and reevaluate in the presence of these adverse effects, as well as a failure to complete reevaluations at each visit, would be a valid basis for objection to the treating provider’s medical bill and continued medication. It would also be a valid basis to raise objection and seek litigation on continued opioid medications.
Finally, depending on the risk assessment results, the doctor is required to do urine toxicology screenings. The risk assessment determines how frequently the screenings are to be completed. Per the Non-Acute Guidelines, the provider must affirm the findings of the urine toxicology screening in his report, but the screening is not to be released to the carrier, employer, or the Workers’ Compensation Board. See, F.3.d.ii. Finally, a patient can refuse a urine drug test, but once refused, will receive no further prescriptions for opioid medications as a consequence of the refusal. (Practitioner’s point: If a claimant refuses a urine toxicology screening, medications should be denied if prescribed at that appointment.)
It is significant that Section F.3.d.ii specifically notes that the results are not be disclosed, as this demonstrates that the other required forms and assessments are required to be disclosed, as there is no such specificity stated in the Guidelines for those forms and tools.
Here, it is clear that there is significant room for error when a provider is treating for non-acute pain. The reports of these providers should be reviewed carefully, and any and all objections raised immediately. It is easier to ensure a claimant never receives opioid medications for non-acute pain than it is to attempt to limit, taper, or discontinue opioids once they have been started to treat non-acute pain.
Finally, Section F.3.e.iii details the reasons to discontinue opioid medications, and Section F.3.e.iv provides the process to be followed for discontinuing and tapering a claimant’s opioid medications. If a provider indicates that discontinuing and tapering of the claimant’s opioids is an appropriate process, then that weaning should be in compliance with the Non-Acute Pain Guidelines.
If you have any questions about the information contained in this article, or about the Non-Acute Pain Guidelines, please do not hesitate to contact me.